TORT 046 Occupiers Liability Applied Trespassers Children Contractors and Landlords — Law of Torts Notes for Judiciary

Occupiers' Liability Applied: Trespassers, Children, Independent Contractors, Landlords, and Particular Premises

Three questions recur in practice. What is owed to a person who had no right to be on the premises at all. Whether a child is judged as an adult would be, and what difference an allurement makes. And whether an occupier answers for work done on his premises by somebody he engaged. To these must be added the position of a landlord out of occupation, and the way the standard rises with what the occupier holds out.

The trespasser from Addie to Herrington, children and allurement, contractors and landlords, and particular premises

1. The Trespasser, and the Movement from Addie to Herrington

📖 Robert Addie and Sons (Collieries) Ltd. v. Dumbreck [1929] AC 358

Facts The defendants worked a colliery. In a field forming part of their premises stood a haulage wheel, part of the machinery, which was unfenced and could be seen from a public road. Children were known to come onto the field and to play about the wheel, and the defendants had given warnings but taken no effective steps to keep them out. A boy of four was caught in the wheel when it was set in motion and was killed.

Held The defendants were not liable. The child was a trespasser.

Ratio An occupier owes a trespasser no duty to take reasonable care for his safety. His only obligation is to abstain from an act done with the deliberate intention of doing harm to the trespasser, or from some act done with reckless disregard of his presence. Knowledge that trespassers come, and even acquiescence in their coming, does not convert them into licensees or raise a duty of care.

📖 British Railways Board v. Herrington [1972] AC 877

Facts A live electrified railway line ran alongside a meadow where children played. The fence between them had been in disrepair for some time, with a gap through which children were known to pass, and railway staff had seen children on the line. A boy of six went through the gap and was severely burned on the live rail.

Held The Board was liable. Addie v. Dumbreck was departed from.

Ratio An occupier owes a trespasser a duty of common humanity. It is not the full duty of care owed to a lawful visitor, and it is measured by the occupier's own knowledge, ability and resources. It arises where the occupier knows of the danger, knows or has reason to believe that persons come or may come near it, and the risk is one against which he may reasonably be expected to offer some protection. What is required of a large undertaking with knowledge of the intrusion is more than what is required of an individual occupier with a small plot and no means.

The Indian position follows Herrington. The duty is not the visitor's duty, but neither is it the near immunity that Addie gave.
The duty is triggered by knowledge. An occupier who does not know of the danger, or has no reason to expect anyone near it, owes nothing under this head.
It is measured subjectively as well as objectively. A defendant's resources are taken into account, which is unusual in the law of negligence and is a mark of the limited character of the duty.
England later put the matter on a statutory footing by the Occupiers' Liability Act 1984, which owes a duty to persons other than visitors in respect of dangers due to the state of the premises. There is no Indian equivalent, so Herrington itself remains the authority here.

2. Children on Premises

📖 Glasgow Corporation v. Taylor [1922] 1 AC 44

Facts In a public park under the control of the Corporation there grew a shrub bearing berries that looked like cherries or large blackcurrants and were poisonous. The shrub was not fenced off and there was no warning notice. A boy of seven ate the berries and died.

Held The Corporation was liable.

Ratio An occupier must be prepared for children to be less careful than adults, and what is not a danger to an adult may be a trap to a child. Where an object on the premises is at once attractive to a child and dangerous to him, and the occupier knows or ought to know that children resort to the place, it is not enough to say that the child should have known better. The allurement supplies both the foreseeability of the child's presence at the danger and the reason why no warning short of removal or fencing was adequate.

Allurement is not a separate doctrine so much as an application of foreseeability. It explains why an occupier should have anticipated that a child would come to the very place where the danger lay.
It also affects the trespass question, since an allurement may be treated as an implied invitation, though after Herrington that reasoning is less often needed.
The American doctrine of attractive nuisance is the same idea more boldly stated. There an occupier who maintains on his land an artificial condition attractive to children and dangerous to them owes them a duty of reasonable care, notwithstanding that they are trespassers. English and Indian law reach much the same result through allurement and common humanity without adopting the doctrine by name.
But the parent is not out of the picture. An occupier is entitled to assume that a very young child will be accompanied by somebody responsible for him, so the primary duty for a toddler rests with the parent, and the occupier's duty is measured against the child he ought to expect to find unaccompanied.

3. Independent Contractors on the Premises

The general rule is that an occupier is not liable for the negligence of an independent contractor he engaged to do work on the premises.
But the protection is conditional on three things. It must have been reasonable to entrust the work to a contractor at all; the occupier must have taken reasonable steps to satisfy himself that the contractor was competent; and he must, so far as he reasonably could, have satisfied himself that the work had been properly done.
The more technical the work, the less the occupier is expected to check for himself. An occupier cannot be asked to inspect the structural calculations of an engineer, but he can be asked to see whether a step has been left unguarded.
And the exception is displaced altogether where the duty is non delegable, as it is for extra hazardous operations and for certain statutory duties. Those are examined in TORT 049.

4. Landlord and Tenant

The situation	Who answers
Premises let entirely to the tenant	The tenant is the occupier and answers as such. The landlord, being out of occupation, is not the occupier
A repairing obligation undertaken by the landlord	The landlord answers for a danger arising from his failure to perform it, whether the obligation is in the lease or imposed by statute
Parts retained in the landlord's control	The landlord is the occupier of those parts: the common staircase, the lift, the terrace, the water tank, the lighting of the passages, the compound
A defect existing at the date of the letting	The landlord answers where he knew or ought to have known of it and concealed it or failed to disclose it
A danger created by the tenant	The tenant answers. The landlord does not become liable merely by being the owner

5. Particular Premises

📖 Klaus Mittelbachert v. East India Hotels Ltd., AIR 1997 Del 201

Facts The plaintiff, a young German co pilot with Lufthansa, was staying at the Hotel Oberoi Intercontinental in New Delhi under an arrangement between the airline and the hotel. On 13 August 1972 he dived into the hotel swimming pool from the diving board, struck his head on the bottom and sustained a spinal injury that left him a quadriplegic. He remained so until his death in 1985. The pool had been designed with depths at or near the minimum, and the lighting in the pool area was inadequate.

Held The hotel was liable. Damages of Rs 50 lakh were awarded.

Ratio A five star hotel that charges five star rates holds itself out as offering a correspondingly high standard of safety, and the Court observed that as regards the safety of the guest there is no difference between such a hotel and an insurer. A swimming pool built to minimum rather than preferred depths, so that a dive from the board would reach the bottom, was a trap, and a general notice that persons swam at their own risk did not answer it. The standard expected of premises is not static but rises with advancing knowledge and with what the occupier holds out.

The premises	What the standard reflects
Hotels	The guest is a contractual entrant who paid for accommodation and safety alike. The standard rises with the class of the establishment: Klaus Mittelbachert
Malls and commercial premises	Customers are invited for the occupier's profit and come in crowds. The occupier must guard against the ordinary carelessness of a crowd: spillages, escalators, glass doors, falling displays
Schools	The duty is owed to children entrusted to the school, and supervision forms part of it. The occupier must anticipate that children will run, climb and explore
Public premises	A State or municipal occupier answers on the same footing as anyone else, since maintaining premises is not an inalienable function of government
Construction sites	Often occupied by the owner and the contractor together, each owing a duty measured by his own control. Children in the neighbourhood are foreseeable entrants

⚠ Why the hotel and mall cases are decided the way they are

It is sometimes said that Klaus Mittelbachert imposed strict liability on hotels, and that is not quite right. What the decision reflects is that the standard of reasonable care is not a fixed quantity: it is measured against what the occupier held out and what the entrant was entitled to expect. A guest who pays a premium tariff at an establishment that advertises its facilities is entitled to assume that the pool has been designed and lit to a standard appropriate to those facilities, and that he need not take his own soundings before diving. The same reasoning explains the mall cases. A retailer who invites crowds in for profit, and who arranges the premises so that customers look at the displays rather than at the floor, cannot then complain that a customer failed to notice the spillage. In each case the occupier has shaped the visitor's expectations, and the law holds him to them.

6. The Position Stated Shortly

1. Addie v. Dumbreck held that an occupier owes a trespasser nothing beyond a duty not to injure him intentionally or recklessly.

2. British Railways Board v. Herrington departed from it and established a duty of common humanity, measured by the occupier's knowledge, ability and resources.

3. The duty arises where the occupier knows of the danger, has reason to believe people come near it, and could reasonably be expected to offer some protection.

4. An occupier must be prepared for children to be less careful than adults, and what is obvious to an adult may be a trap to a child.

5. Glasgow Corporation v. Taylor is the allurement case: poisonous berries, unfenced and unlabelled, in a public park.

6. An occupier is entitled to assume that a very young child will be accompanied, so the primary responsibility for a toddler rests with the parent.

7. An occupier is not liable for an independent contractor's negligence if he was reasonable in entrusting the work, in selecting the contractor, and in checking so far as he could.

8. A landlord out of occupation is not the occupier, but answers for a repairing obligation he undertook and for parts he retained in his own control.

9. Klaus Mittelbachert v. East India Hotels holds that a five star hotel must meet a correspondingly high standard, and that a defectively shallow pool was a trap no general notice could cure.

10. The standard expected of premises rises with what the occupier holds out and with advancing knowledge, and public and municipal occupiers answer on the same footing as private ones.